May 8, 2025 Albertina AntogniniFamily Law
Laura Portuondo,
Gendered Liberty, 113
Geo. L. J. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
The family law canon is in flux. Much of the conversation has rightly focused on Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), which narrowed the scope of substantive due process to exclude the right to obtain an abortion. But there is also Fulton v. City of Philadelphia, 593 U.S. 522 (2021), where the Supreme Court found that the city’s decision to terminate its contract with a religious agency for not certifying same-sex parents as foster parents violated the agency’s free exercise rights. And 303 Creative v. Elenis, 600 U.S. 570 (2023), which interpreted the First Amendment’s freedom of expression to protect the religious beliefs of a website designer who refused to create wedding websites for same-sex couples, overriding a state public accommodations law in the process.
These various cases addressing different clauses of the Constitution are broadly united insofar as they portend the Court’s conservative turn in family law and beyond. Yet Laura Portuondo’s forthcoming piece, Gendered Liberty, shows that these cases are more than fellow ideological travelers—rather, they reflect the Supreme Court’s specific and singular understanding of gender. What Dobbs, Fulton, 303 Creative, and others do, is “consistently ensure protections for conduct that enforces traditional gender norms and actively undermine statutory conduct that resists them.” (P. 4.) Continue reading "Whose Liberty?"
May 7, 2025 Ezra RosserLexPoverty Law
Uma Outka,
Energy Law and the Low-Income Household, 54
Envtl. L. 720 __ (forthcoming 2025), available at
SSRN (Jul. 01, 2024).
Uma Outka’s article, Energy Law and the Low-Income Household (forthcoming in Environmental Law), convincingly argues that the affordability challenges related to energy facing poor households should not be treated as external to the field of energy law. As Professor Outka shows, it is tempting to treat the problems faced by low-income households—high energy cost burdens, poor insulation, and vulnerability to service cutoffs—as exogenous to energy law. By sidelining such concerns as matters of poverty law, those within the energy sector, as well as academics working within energy law, can ignore the precariousness of low-income households and neglect the need for innovation and support within the field. Professor Outka succeeds in contributing to the conversation in both the energy law and poverty law spaces by presenting an in-depth history of the principal government program, the Low-Income Home Energy Assistance Program (LIHEAP), supporting the needs of low-income households, and by carefully connecting the poverty and energy law fields.
The article begins with a rich history of the LIHEAP program and then expands slightly to include the Low-Income Weatherization Assistance Program (WAP). This history will be new to many in the poverty law field since energy policy, even programs that help low-income households, is beyond the scope of most work in the field. Yet, as Professor Outka notes, access to reliable energy is often crucial for basic survival in summer or in winter. Inability to pay can leave poor households extremely vulnerable to loss of service. Even when such households can pay their energy bills—Professor Outka highlights research showing that need for money to pay utilities is the number one reason low-income households turn to payday lending—high energy costs relative to income can threaten such households’ other basic needs. The history that Professor Outka includes is presented at just the right level of detail; readers come away understanding how the LIHEAP and WAP programs work as well as the politics shaping their creation and evolution. Continue reading "Bringing Everyone, Including the Poor, in Energy Law and Policy"
May 6, 2025 SpearItCriminal Law
As a decade-long contributing editor at JOTWELL criminal law, my modus operandi is to read legal scholarship with an eye to considering a piece for my annual JOTWELL review. Usually, I have several articles on my shortlist—but that was not the case this year. When I came across The Exigencies of Black Existence: The Blue Gaze, the State of Exception, & Racialized Policing in Carceral Internal Colonies by Ciji Dodds, I was hit with something different, a new prism through which to imagine the bonds between prison life and life in the ’hood; I was forced to read shocking statements that jolted me in poetic ways. It was reminiscent of when I first read Anthony Paul Farley or Angela Harris.
I was initially struck by the introduction, which pointed to the irony of Martin Luther King boulevards, which line practically every major city in the country. The ironic part is that although Dr. King was a fierce advocate of non-violence, his namesake streets are associated with violence and other vices of the ’hood, as she rhymes “[e]veryone knows to stay away from MLK.” (P. 235.) While such streets may also be associated with urban redevelopment projects in the wake of destroyed traditional Black business communities, this grim reality begins a journey into the dynamics of prison culture and its influence in preparing people for a life in prison. Statistically, it is in fact the neighborhoods where such streets are named that supply many of the people who will eventually find themselves in prison. Continue reading "Colonizing the ’Hood Through Incarceration"
May 5, 2025 Adam N. SteinmanCourts Law
Nitisha Baronia, Jared Lucky, & Diego A. Zambrano,
Private Enforcement at the Founding and Article II, 114
Calif. L. Rev. __ (forthcoming, 2026), available at
SSRN (May 8, 2024).
If we were on Family Feud and the question was “Name a constitutional obstacle to private enforcement of federal substantive law,” the #1 answer on the board would probably be Article III standing—most notably its requirement that any plaintiff suing in federal court must have suffered a concrete, particularized “injury in fact” as a result of the alleged violation of federal law. After TransUnion v. Ramirez, however, a new answer is moving up the survey: Article II. Although most of TransUnion’s rationale was grounded in Article III, Justice Kavanaugh’s majority opinion also observed that private litigation by ostensibly “unharmed” plaintiffs “would infringe on the Executive Branch’s Article II authority.” TransUnion’s invocation of Article II has accelerated challenges to a host of federal private enforcement regimes, prompting one district court judge in Florida to declare the qui tam provisions of the False Claims Act unconstitutional.
In their excellent article, Nitisha Baronia, Jared Lucky, and Diego Zambrano interrogate this Article II challenge to private enforcement by taking us back in history. Long before Richard Dawson was hosting Family Feud. All the way back to Richard Harrison, the Auditor of the U.S. Treasury Department whose correspondence with Alexander Hamilton sheds light on Founding Era understandings of private enforcement regimes. Baronia, Lucky, and Zambrano marshal a host of historical sources to show that the new weaponization of Article II stands in stark contrast to a “tradition of private enforcement” that existed before, during, and immediately following the Founding. In an age when “history and tradition” dominate so much of the legal landscape, this is an invaluable contribution. Continue reading "What History Really Says About the New Article II Assault on Private Enforcement"
May 2, 2025 Brett McDonnellCorporate Law
Ann Lipton,
The Legitimation of Shareholder Primacy,
__ J. Corp. L. __ (forthcoming, 2025), available at
SSRN (Feb. 03, 2025).
The United States is going through a moment of extreme political strife and uncertainty. Delaware’s corporate law ecosystem is going through its own moment of strife and uncertainty, albeit with less stratospheric—but still high—stakes. Significant connections exist between the conflict occurring within these two systems, including but not limited to the techno-king himself, Elon Musk.
Ann Lipton explores some of those connections in The Legitimation of Shareholder Primacy. Lipton argues that the central corporate law norm of shareholder primacy was intended to shield Delaware law from political debate, but internal tensions within the concept combined with the political polarization of our times have battered that shield. The development of that argument features Lipton’s deep knowledge of corporate law and governance, which is tied here to an interesting political story. Continue reading "A Legitimation Crisis Strikes Delaware Corporate Law"
May 1, 2025 Orit GanContracts
A fascinating new article by Andrew Keane Woods examines contracts in the digital age. These contracts are society-wide in scope, and their scale surpasses other massive contracts we use. Moreover, they set the rules for digital society and govern the digital world. Furthermore, they determine constitutional rights such as privacy rights, speech rights and Fourth Amendment rights.
The internet, digital platforms, and social media are heavily governed by private law. However, courts generally apply contract law to enforce these contracts without due regard for their public aspects, as outlined above. Courts emphasize procedural fairness and assent rather than substantive justice and the contract’s social impact. Furthermore, courts usually allow parties to contract away their public rights, such as the right to sue in a court of law, and regularly enforce liability waivers. Moreover, courts commonly overlook the public interests, social costs, and harms these contracts entail, and only rarely invalidate contracts on grounds of public policy. Similarly, scholars and reformers mainly focus on procedural fairness and mutual assent, for example by promoting better disclosure, while neglecting the public aspects of these contracts. Continue reading "Contracts in The Digital Age"
Apr 30, 2025 Rebecca ZietlowConstitutional Law
Lucien Ferguson,
Contesting State Capture, 46
Cardozo L. Rev. __ (forthcoming, 2025), available at
SSRN (Feb, 6, 2025).
What is the proper role for courts to play in ensuring the health of our democracy? In the early 21st century, the principal threat to democracy is state capture by monied interests and what appears to be a rising oligarchic state. At a time when the president of the United States uses the South Lawn of the White House to record an ad for a car company owned by a billionaire who has donated hundreds of millions of dollars to his campaign, concern about state capture by special interests is one of this country’s most urgent problems. The federal courts have been called upon to police illegal and unconstitutional activity, placing a strain on our judicial system that threatens our democracy. However, they have proven unwilling to address the murkier problem of state capture by powerful and wealthy individuals who use the government to promote their own interests.
In his forthcoming article, Contesting State Capture, Lucien Ferguson shifts our focus from federal to state courts. Ferguson argues that state courts have a special role to play in preventing state capture, in part because state constitutions contain special provisions aimed at preventing this peril. According to Ferguson, some of the most urgent examples of capture include partisan gerrymandering and voter ID laws, which are all designed to aid one political party (the Republican Party), as well as Right to Work Acts that undermine the political power of unions. Ferguson maintains that these laws are “special acts” that violate state constitutions and common law doctrines. One can also think of examples that cut towards the Democratic Party, such as legislation that favors union organizing and plaintiff’s attorneys, significant sources of funding for Democratic candidates. Ferguson calls on state courts to enforce state constitutional provisions to constrain state capture from any source. Continue reading "State Constitutions As A Bulwark Against Oligarchy"
Apr 29, 2025 Wendy WagnerAdministrative Law
Nikhil Menezes & David Pozen,
Looking for the Public in Public Law, _
U. Chi. L. Rev._ (forthcoming, 2025), available at
SSRN (Oct. 02, 2024).
If you have ever advocated for a greater “public” role in administrative law without specifying who that public actually is or how they might realistically engage, then Nikhil Menezes’ and David Pozen’s terrific new article, Looking for the Public, is a must-read. Menezes and Pozen call out our bad habits, trace the many adverse consequences that result from our imprecision, and challenge us to do better while offering concrete suggestions for how we might do so. Their analysis makes it clear that until we address the phantom public problem, well-meaning efforts to create more inclusive or public-spirited policies and processes will be missing the most critical ingredient of all—evidence that the policies or processes actually benefit a “credible public.”
Looking for the Public begins by tracing how, despite our reliance on the public as the lodestar for virtually every policy and process in administrative law, lawmakers and scholars regularly appeal to the public without providing evidence-based accounts of who the public is or how they might engage. Efforts to ground policy or accountability mechanisms in “public opinion,” the “public interest,” and “public participation” often neglect to locate these same publics, while at the same time steadfastly ignoring mounting literature that suggests the public is absent or not credibly represented. Continue reading "The “Phantom Public” Exposed and Transformed"
Apr 28, 2025 Kerri Lynn StoneWork Law
In a field as volatile and fragmented as employment discrimination law, it helps to see how courts take the same concept in different statutes and apply that concept against different backdrops. In Reasonably Accommodating Employment Discrimination Law, Professor William Corbett has done just that by examining “reasonable accommodation” in federal employment discrimination law as a mandate, an entitlement, and a capacious concept. He focuses on the employer duties under Title I of the Americans with Disabilities Act (enacted 1990, amended 2008) to provide “reasonable accommodations” to employees and job applicants for “known physical or mental limitations” absent “undue hardship on the operation of the business”; the Pregnant Workers Fairness Act (enacted in 2022), which requires employers to make “reasonable accommodations” for an employee for “known limitations” related to pregnancy, childbirth, and related medical conditions absent “undue hardship on the operation of the business”; and the employer’s duty under Title VII of the Civil Rights Act of 1964 (as amended) to “reasonably accommodate” current and prospective employees’ religious practices absent “undue hardship on the conduct of the employer’s business.” Corbett finds that these accommodation duties “demonstrate the largely dysfunctional, piecemeal approach that Congress and the Supreme Court have followed for over half a century in revising and updating employment discrimination law.” (P. 539.) His insights throughout the article and his use of the lens of comparison make the piece exceptional.
Corbett sharply and thoroughly excavates the problem from Supreme Court opinions like Groff v. DeJoy (2023), EEOC v. Abercrombie & Fitch (2015), and Young v. United Parcel Service, Inc. (2015). First, according to Corbett, the Court approaches the statute at issue to engage in statutory interpretation. Next, Congress responds to the decision by amending the statute at issue or otherwise changing the decision’s result with a “patch.” At this point, the Court sets about interpreting the new statutory language. It is there that Corbett extracts his key observations about the asymmetries inherent in accommodation jurisprudence. Continue reading "Antidiscrimination Law Cannot Accommodate Asymmetry"
Apr 25, 2025 Michael YuTrusts & Estates
Jonathan G. Blattmachr writes, “This Article primarily will deal with how the wealth transfer tax system might be used to provide reparations for descendants of people enslaved in the United States as part of the system of chattel slavery. It will not discuss other potential reparations such as for Native Americans among others.” (P. 297, dagger note.) The term “wealth transfer tax system” refers to the estate, gift, and generation-skipping transfer taxes imposed by Subtitle B of Title 26 of the United States Code. (P. 297, note 1.) Blattmachr’s specific proposal is that “a refundable estate tax credit (perhaps, up to a certain limit of wealth or using a scaled credit) could be allowed for the estates of descendants of enslaved persons.” (P. 309.) Blattmachr contributes to the literature of wealth transfer taxes, wealth inequality, racial wealth disparity, and reparations with his thoughtful proposal.
The core of Blattmachr’s proposal is the “refundable estate tax credit.” For any decedent dying in 2024, the estate tax credit currently stands at $5,389,800. (This jot focuses on the estate tax credit of $5,389,800 because Blattmachr’s article focuses on the estate tax credit—often, discussion centers on the estate tax exemption amount ($13,610,000 for a decedent dying in 2024), which is, generally, the amount that can be transferred estate tax-free to persons other than one’s spouse and other than to charities.) That relatively high estate tax credit is slated to sunset at the end of 2025 and revert to a lower estate tax credit unless Congress enacts new legislation. Before we discuss the mechanics and merits of a refundable estate tax credit, we should note that Blattmachr does not propose unequivocally that $5,389,800 be refunded to each estate of descendants of enslaved persons. Instead, Blattmachr explains that the amount of the refundable credit could be limited or scaled. (P. 309.) Continue reading "A Refundable Estate Tax Credit Might Promote Fairness and Reduce Inequality"
